Exculpatory? Evidence not admitted in abduction trial

Commonwealth's Attorney Denise Lunsford got a jury to convict Mark Weiner of abduction, but his lawyer says the jury didn't hear evidence that could have exonerated him.

publicity photo/family photo

Local law enforcement and lawyers are abuzz about a recent abduction trial in which they say the prosecution did not allow evidence that would have cast serious doubt about the alleged victim's story.

Criminal defense attorney Ford Childress calls it a "miscarriage of justice" that led to the May 24 conviction of his client, former Food Lion manager Mark Weiner, when two police officers were ready to testify that cellphone tower records did not corroborate the alleged victim's tale of being abducted, drugged, and then escaping from an abandoned house.

The alleged incident took place December 13 when Weiner gave 20-year-old Chelsea Steiniger a ride home from the Lucky Seven parking lot on a cold winter's night. During the four-day trial, Steiniger testified that she texted her boyfriend that she'd found a ride, and that Weiner "tried to get in [her] pants," according to an account of the trial in the Daily Progress.

Steiniger told the jury that Weiner drove past her mother's Carriage Hill apartment on Pantops and he put a cloth over her face. She said she woke up in an abandoned house near Shadwell, escaped, and walked home to her mother's.

While she was allegedly held captive, her boyfriend received taunting texts from her phone with messages such as, "She's so sexy when she's passed out," according to media reports of the trial. He called 911, and Weiner was arrested December 14.

According to defense attorney Childress, Commonwealth's Attorney Denise Lunsford "sought the advice of two respected detectives in the city and the county" to check cellphone tower records to pinpoint from where the text messages came, and both detectives separately concluded the texts originated from an area close to where Steininger's mother lived on Pantops, not the abandoned house in Shadwell.

Charlottesville Detective Blaine Cosgro was the first one to analyze the records and he told Lunsford there was a problem with the case, says Childress. While the trial was going on, she then consulted Albemarle Detective Mark Belew, who came to the same conclusions, according to Childress.

The jury heard neither men's testimony. Childress says he tried to use Cosgro as a defense witness, and Lunsford had him disqualified as an expert. "It's ironic," he says. "She asked for his advice, and when she got it, she said [Cosgro] wasn't qualified." Childress says he didn't learn Belew had also analyzed the information and pinpointed a Pantops origination until after the case had gone to the jury.

"Denise Lunsford said it was exculpatory, but it wasn't her obligation to give it to me" because she had presented her case, says Childress.

"I believe the jury would have had an entirely different outcome had they heard Cosgro's testimony," says Childress.

While the jury was deliberating, Detective Belew told Judge Cheryl Higgins that AT&T records put Steiniger's cellphone in a location closer to her mother's house than the abandoned house during the time the taunting texts were sent to her boyfriend, and that he'd prepared the information at Lunsford's request. Neither Cosgro nor Belew responded to phone calls from the Hook.

In a phone interview with the Hook, Steiniger calls the police analysis of her cellphone records "bullsh*t." She says, "What happened to me, I'm lucky to be here right now. I want him off the street so he can't do it to anyone else."

Weiner, 53, was convicted of abduction with intent to defile, and the jury recommended a 20-year sentence. During the trial, no physical evidence was presented that connected Weiner to the abandoned house or Steiniger's cellphone, says Childress. Weiner has been held without bond since December, and will be sentenced in August.

"If Denise looked into this and talked to her detectives, she could easily correct this miscarriage of justice," says Childress. "I have faith in her fairness." He says he would like to see Lunsford join in his motion to set aside the verdict rather than force his client to go through the years-long appeal process.

"Denise Lunsford got the conviction, but the real duty of the commonwealth's attorney office," says Childress, "is to seek justice." Lunsford did not respond to a phone call from the Hook.

Childress says he's had at least a half a dozen cops approach him about the omission of the cellphone evidence. "Lawyers grab my elbow wherever I go," he says, "even in different counties."

There's a reason for the uproar, says Childress, a lawyer for 30 years and former Albemarle prosecutor: "That's not the way we do business here— not if you're trying to get justice."

20 comments

Almost makes me want to stage a "peaceful" protest rally... where I hold a sign saying "no justice, no peace"

What a crock July 24th, 2013 | 5:03pm

Typical: A defense attorney loses his case in court and wants to relitigate it in the press. The headline of the article may as well be "According To Ford Childress." There are sufficiency requirements for the admissibility of scientific or expert testimony, both in terms of the evidence itself and the qualifications of the person testifying. If the records known to the detectives didn't meet those standards, they shouldn't have come in! Read the 700-series of the new VA Rules of Evidence, especially 701 and 702.

Moreover, A JUDGE MADE THIS CALL. If the expert was disqualified, he had to have been disqualified BY someone. In this case, Judge Higgins.

I find it the height of irony that this jeremiad on professional ethics comes from a reporter with apparently none of her own. There is ONE source for the most inflammatory allegations in this article. Ms. Steiniger knows what happened to her factually, but the procedural shortcomings that Ms. Province alleges are a matter that require some depth of legal understanding beyond that of a lay victim. To ONLY quote a defense attorney who got his a$$ beat in court . . . just awful.

American Farmer July 24th, 2013 | 5:04pm

"... two police officers were ready to testify that cellphone tower records did not corroborate the alleged victim's tale of being abducted, drugged, and then escaping from an abandoned house."

So the DA takes the word of a disturbed 20 year old and won't even listen to her own police officers?

That's disturbing.

Bill Marshall July 24th, 2013 | 5:35pm

So perhaps the prudent thing to do would be to at least inquire what Mr Weiners side of the story is. I know I am curious. This is his only arrest in the Court system.

I think that if I woke up in an abandoned house after being kidnapped I would call 911 to come get me rather than risk the kidnapper coming back.

anyone know any more facts?

Zorroni July 24th, 2013 | 9:04pm

If one is convicted of an "alleged incident", then it's no longer an "alleged incident".

Gasbag Self Ordained Expert July 24th, 2013 | 11:01pm

Zorroni, how would you explain your position to the dozens of people who have been released from prison after DNA has cleared them? Keep in mind now that many of them had already served 15 and 20 years in prison for their alleged offense! The accusation against them was an alleged offense from start to finish. How about those where the "victims" finally admit they LIED about the entire thing?

Yet July 24th, 2013 | 11:25pm

Typical. We need a change, or perhaps this entire "law enforcement" gang to be gone forever. These people do not know right from wrong.

It's nothing short of amazing that 12 people could be convinced to send someone to jail for 20 years based on such a far-fetched story and no evidence. The text message with the word "Imma" makes me skeptical on its own. That and the other text messages are the sort of thing one might find among the "victims" facebook favorite pages rather than being used by what seems to be a dull 53 year old guy. You will have to do a little work to look through them since I'm not embedding links, but this is a case where the accuser's personality and interests should definitely be considered.

Buffalo Wild Wings Charlottesville, FIND SAGE, A tribute page for Kimberly Welch '' Rest In Peace'', Boyfriends who actually treat their girlfriends like princesses, I Miss You, The 0ld You, The New One Sucks., I don't know why i'm so afraid to loose you, when you're not even mine, In My Eyes You Are The Most BeautiFul Thing Ever And "I Love YOU", No One Can Ever Replace You, If that one little thing had/hadn't happened, things would be so different, Your A Non-Mutha F**kin Factor B**ch, Boys vs Girls, " F**k Relationships, I'm Single " < 3

The commenter What A Crock seems to believe that the conviction of Mark Weiner was ironclad, despite the fact that at trial "no physical evidence was presented that connected Weiner to the abandoned house or Steiniger's cellphone."

He complains that the Hook reporter "ONLY" presented the defense side of the story, but not that of the prosecution. Perhaps he missed the statement that Denise Lunsford, the prosecutor, "did not respond to a phone call from the Hook."

He implies that Virginia's new Rules of Evidence necessarily excluded the testimony of the two detectives who concluded that test messages from the "victim's" cellphone originated closer to her mother's residence than to the abandoned house where she claimed to have been held captive. But that's simply not the case.

Here is what the two rules cited by What A Crock say:

"Rule 2:701 OPINION TESTIMONY BY LAY WITNESSES
Opinion testimony by a lay witness is admissible if it is reasonably based upon
the personal experience or observations of the witness and will aid the trier of fact in understanding the witness' perceptions. Lay opinion may relate to any matter, such as - but not limited to - sanity, capacity, physical condition or disability, speed of a vehicle, the value of property, identity, causation, time, the meaning of words, similarity of objects, handwriting, visibility or the general physical situation at a particular location. However, lay witness testimony that amounts only to an opinion of law is inadmissible."

"Rule 2:702 TESTIMONY BY EXPERTS
(a) Use of Expert Testimony.
(i) In a civil proceeding, if scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine
a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise.
(ii) In a criminal proceeding, expert testimony is admissible if the standards
set forth in subdivision (a)(i) of this Rule are met and, in addition, the court
finds that the subject matter is beyond the knowledge and experience of ordinary persons, such that the jury needs expert opinion in order to comprehend the subject matter, form an intelligent opinion, and draw its conclusions.
(b) Form of opinion. Expert testimony may include opinions of the witness
established with a reasonable degree of probability, or it may address empirical
data from which such probability may be established in the mind of the finder of
fact. Testimony that is speculative, or which opines on the credibility of another
witness, is not admissible."

So, why did Denise Lunsford seek the cellphone tower analysis analysis from two police officers – one city, one county – rather than just a "lay witness" from, say, the downtown mall? Do the two police officers in question have any training and/or expertise in such analysis? We don't know, but presumably Lunsford went to them because she thought they did. Was their potential testimony in this particular case merely " an opinion of law?" Doubtful.

Rule 702 states that an "expert" is someone qualified with "knowledge, skill, experience, training, or education" who can" testify...in the form of an opinion or otherwise." Moreover, the rule states that "Expert testimony... may include opinions of the witness established with a reasonable degree of probability, or it may address empirical data from which such probability may be established."

It would appear that Denise Lunsford did not want the two police officers to testify because their testimony would put a rather substantial hole of reasonable doubt in the prosecution's case.

So, the questions are:

1. Why did Lunsford seek out the opinion of these officers in the first place?

2. And do these officers have any particular "knowledge, skill, experience, training, or education" in the analysis of calls or texts from cell phone towers that would qualify them as "experts?"

3. Aren't there "experts" at AT&T who could provide a more definitive analysis of the cell phone tower records?

Any prosecutor is an officer of the court, and as such has "a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process." Officers of the court have an ethical responsibility to seek the truth.

One would hope that Denise Lunsford's actions are consistent with her professional responsibilities.

Gasbag Self Ordained Expert - If one is tried for an alleged offense and found guilty of having committed the alleged offense, then it is no longer an alleged offense. It is an offense one has been found guilty of committing. If that conviction is later nullified then one can again speak of the offense as an alleged offense. You can call it whatever you want to call it, of course. It's a free country. I think journalists, though, should be more rigorous in their use of language. In the eyes of the law there are no innocent people in prison. They are there, rightly or wrongly, because they have been found guilty of a crime.

Hook Reader July 25th, 2013 | 2:20pm

> In the eyes of the law there are no innocent people in prison.

The law is an ass, much like the church.

People that put too much faith in the current American legal system are cut from the same cloth as those that used to put too much faith in the Inquisition.

"See? She's burning. She must be a witch."

Zorroni July 25th, 2013 | 6:07pm

Hook Reader - It's never good to have "too much faith" in the system, whatever that system may be. There will always be a system, either more or less rational, just, and humane than the current one. It's better to understand the system and adapt to it (to avoid being crushed by it), while striving to make it better.

Twenty years for abduction with intent to defile sought by a prosecutor who wouldn't allow an investigation of a man who violently raped two women?

Hook Reader July 26th, 2013 | 1:10pm

Zorroni, I'd offer that it's better to understand it and then ignore it as much as possible.

jimbo July 29th, 2013 | 6:13am

Business as usual for our Commonwealth’s Attorney Office which is well known for its disdain of the ethics governing prosecutors. Binging cases against individuals they know or suspect are innocent, and sure suppressing, hiding, or ignoring exculpatory information – all tools of the trade for them. They bring any case where there is any possibly that they can win and they do not care whether the person on trial is guilty or what lives are ruined in the process. And why not, they have absolutely nothing to lose because it’s the taxpayer’s money that is wasted and when they lose they can hide behind laws written by the legislature that guarantee prosecutors and judges are untouchable and literally above the law they all claim to uphold. My advice; don’t waste your time looking for “justice” in this court – appeal your case and you will most likely get a fair if not timely hearing.

Amy Lemley July 29th, 2013 | 10:33am

It is immature to indict this reporter's ethics based on this article (or her other articles, but let's talk about this one only for a moment). As one of the Commenters said, the other side had a chance to comment and didn't. That doesn't mean there is nothing to report. We are all smart enough (I hope) to read this article and notice whatever was left out then deduce why. If the opportunity presents itself, I am sure the Hook would present the other side. And I too would like to hear the convict's perspective. I don't know this case, but I wonder why the victim didn't call 911 immediately, and then take the police back to the abandoned house while she could remember details. The phone evidence is reliable, and I believe it should have weighed heavily. I also believe that, if the prosecution didn't consider those officers credible (yes, I realize the judge decides whether to rule them out), she could have and should have found other experts. She had to know full well that the phone info would have identified the abandoned house's location if that is where the texts had come from. If local officers couldn't get that "right" by her standards, she should have gone to a national expert. A possible 20-year sentence demands that level of scrutiny. And of course, any sentence does.

red August 7th, 2013 | 4:18pm

His lawyer should have got a competent expert to do the analysis. As he knows, there are lots of things police officers lack the expertise to testify about, though they may have some knowledge about them. Defense attorneys manage to keep that testimony out all the time.